Crawford Error Can be Harmless, Many Courts Say

State of Washington v. Kendra Lynn Watt (2007)

The Washington Supreme Court has joined many others in holding that trial court errors admitting evidence in violation of the Crawford decision are not structural errors. They can thus be harmless and not require a new trial. Such was the situation, the court said, in the case in which it made this holding, State of Washington v. Kendra Lynn Watt, 2007 WL 1704419 (No. 77281-9, 6/14/07).

Watt was convicted of three drug offenses, one of which alleged that she had endangered children by exposing them to the hazards of a methamphetamine lab. Her husband did not testify at her trial. The prosecution offered his statements to a police investigator and on a guilty plea form, and the trial court admitted them against her. This violated the Confrontation Clause as construed in the landmark case Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Crawford issues arise frequently in child sex abuse cases. Usually when they do, the hearsay statements were made by the complaining child. For an explanation of the Crawford decision and the most recent elaboration on it from the Supreme Court of the United States, see Most Child Statements to Police Now “Testimonial”.

In the Watt case, the defense argued that the trial court’s Crawford error was a “structural defect.” This would mean that reversal of the conviction would be automatic; there would be no need to consider whether the trial would have turned out the same even if the judge had not committed the error. The Washington Supreme Court set forth three categories of structural defect:

“Structural defects” defy harmless error analysis because they undermine the framework of the trial process itself, their effect cannot be ascertained without resort to speculation, or the question of harmlessness is irrelevant based on the nature of the right involved.

The court concluded that the effect of a Crawford error could be ascertained and that the other categories of structural defect did not apply either. Hence automatic reversal was not required:

The admission of a hearsay statement in violation of the confrontation clause is a classic trial error. This is so because a reviewing court may evaluate the possible effect of the hearsay statement in the context of all the evidence presented at trial.

The court noted that ten federal courts of appeal (the 1st through 10th Circuits, numerically) have also applied harmless error analysis to post-Crawfordconfrontation violations.

The court then reviewed the evidence in Watt’s case. It found the other evidence in the case made the erroneous admission of the husband’s statements harmless: “Because overwhelming untainted evidence establishes the facts that the State sought to prove with [the husband’s] hearsay statements, the admission of that evidence was harmless beyond a reasonable doubt.”

The conviction was therefore affirmed.